Judge: Laura A. Seigle, Case: 21STCV30709, Date: 2023-04-25 Tentative Ruling

Case Number: 21STCV30709    Hearing Date: April 25, 2023    Dept: 15

[TENTATIVE] ORDER RE MOTION TO COMPEL FURTHER RESPONSES, MOTION FOR PROTECTIVE ORDER

            On March 22, 2023, Plaintiffs Kirt Bjoin and Allison Bjoin filed a motion to compel the further deposition of Defendant Water Application Distribution Group, Inc.’s PMQ deposition because the witness was unprepared.  That same day Defendant filed a motion for a protective order to prevent another deposition of the deponent.

            The parties did not make this easy.  The Separate Statement does not separately identify each question the witness failed to answer.  Instead, it groups them together in long quotations from the deposition transcript.  Also, the Separate Statement does not number each unanswered question.  Therefore, the court will identify each unanswered question by the page and line numbers set out in the Separate Statement.

            The court rules as follows on the Motion to Compel Further Responses:

            Question 261:1-8:  The question (although too long and confusing because of all the preliminary comments) asks if Taylor Jet sold asbestos cement pipe in Southern California in the 1970s and 1980s.  Part of the problem is that the preliminaries to the question ask about Defendant’s “position.”  Framing it that way turns it into a legal contention question suitable for an interrogatory but not a deposition.  The question should simply be “did Taylor Jet sell asbestos cement pipe in Southern California in the 1970s and 1980s?”  The answer should be “yes,” “no”, “I don’t know,” “I don’t remember,” or some variation such as “yes, for part of that time period.”  The witness did not answer the question.  Instead he talked about other depositions. 

Granted in part, as reworded above.

            Question 262:18-24:  This question asks if Defendant has “a position on this topic area.”  That question makes no sense.  Denied.

            Question 263:4-8:  This question asks if Defendant has a position on whether Taylor Jet sold asbestos cement pipe in the 1970s and the 1980s in Southern California.  See Question 261:1-8 above.  Also, the speaking objections are improper.  An objection should be no more than two or three words.

            Granted in part as reworded above.

            Question 264:14-17:  This is a proper question without all the preliminaries.  The answer – “I don’t know” --was also proper.  Denied.

            Question 265:3-4:  This question asks if the witness is saying Defendant doesn’t know.  This question is vague and ambiguous.  The witness can only answer what he knows.  As a PMQ, what he knows needs to be based on “any information known or reasonably available to the deponent.”  (Code Civ. Proc., § 2025.230.)  In other words, this PMQ witness must educate himself and cannot rely solely on his personal knowledge.  If the PMQ witness answers, “I don’t know,” the questioner can then follow up by asking what the witness reviewed and investigated to prepare for his deposition, i.e., what reasonably-available information he relied on.  Denied.

            Question 267:20-24:  This question asks if Defendant can state whether Taylor Jet sold asbestos cement pipe in Southern California in the 1970s and 1980s.  See Question 261:1-8 above.  The question should simply be “did Taylor Jet sell asbestos cement pipe in Southern California in the 1970s and 1980s?”  If Plaintiffs want Defendant’s position, they should ask a contention interrogatory.  Also, the speaking objections are improper.  An objection should be no more than two or three words.  In addition, defense counsel’s statement that the Ramirez case only allows lay and expert witnesses is incorrect.  That case recognizes that for depositions, section 2025.230 provides for PMQ witness and the PMQ witness has an obligation to educate himself based on reasonably available information.

            Granted in part as reworded above.

            Question 268: 17-18:   The witness answered the question.  Denied.

            Question 268:25-269:1:  Contrary to defense counsel’s objection, a PMQ witness does not need to have personal knowledge for the purpose of the deposition.  Whether PMQ deposition testimony not based on personal testimony is ultimately admissible at trial is a different question for a different time.  Granted.

            Question 269:12-16:  See Questions 261:1-8 and 267:20-24 above.  Granted in part as reworded above.

            Question 270:12-16:  See Questions 261:1-8 and 267:20-24 above.  Granted in part as reworded above.

            Question 270:25-271:  The witness answered the question.  Denied.

            Question 271:3-7:  See Questions 261:1-8 and 267:20-24 above.  Granted in part as reworded above.

            Question 272:22-273:2:  See Questions 261:1-8 and 267:20-24 above.  Granted in part as reworded above.

            Question 274:13-19:  See Questions 261:1-8 and 267:20-24 above.  Granted in part as reworded above.

            Question 275:8-11:  See Questions 261:1-8 and 267:20-24 above.  Granted in part as reworded above.

            Question 275:16-22:  See Questions 261:1-8 and 267:20-24 above.  Granted in part as reworded above.

            Question 276:14-17:  This question asks about what Defendant “believes” concerning asbestos being released when asbestos cement pipe is cut.  This question is vague and ambiguous because a company is made of individual people who believe different things.  A company does not have “beliefs,” except maybe in the context of a mission or values statement or the like.  If Plaintiffs want to know if Defendant has made public or internal statements about the issue, Plaintiffs should ask that question.  If Plaintiffs want to know if employees, officers, or directors at Defendant have discussed the issue, Plaintiffs should ask that question.  Denied.

            Question 277:3-8:  This question asks for Defendant’s position on whether asbestos is released when asbestos cement pipe is cut.  See Question 276:14-17 above.  Denied.

            Question 281:13-14:  The witness did not answer the question.  Granted.

            Question 282:10-12:  The witness did not answer the question.  Granted.

            Question 282:20-21:  The witness answered the question.  Denied.

            Question 283:18-19:  The witness answered the question.  Denied.

            Question 283:25-284:3:  The witness did not answer the question.  Granted.

            Question 284:13-21:  The witness did not answer the question.  Denied.

            In sum, the deposition was not successful because of the lack of understanding about the purpose of a PMQ deposition under section 2025.230.  It is not a substitute for contention interrogatories.  It does not require the PMQ witness to have personal knowledge.

            The motion to compel a further deposition is GRANTED in part and DENIED in part.  The PMQ witness is to be deposed within the next 10 days on the questions noted above.

The motion for a protective order is DENIED.

            The requests for sanctions are DENIED.  Some of the objections were legally incorrect, but some of the questions were objectionable as explained above.  Both sides contributed to the problems in this deposition.

            The moving party is to give notice.